Over time, I changed my mind even about that.
Andrew Cohen ultimately takes a "middle position" on the death penalty, but the bulk of his argument points to the conclusions reached by Justices from William O'Douglas to John Paul Stevens to Ruth Bader Ginzburg, that it is inherently impossible to administer the death penalty in a fair and dispassionate way, that the whole process inevitably violates the letter and the spirit of the Eighth Amendment forbidding cruel and unusual punishment.
Death is the one penalty that cannot be undone. There's no such thing as posthumous commutation, and posthumous "pardons" are more for the living than for the deceased who is beyond all relief. A mistaken or unjust conviction remains forever done and never to be undone.
There is always the common wisdom that fair or not, the condemned got more justice than he ever showed his victims. Cohen replies to that truism thus:
That's why we outlaw lynching, why angry mobs can't storm jailhouses, and why we have judges. It's why we have a Constitution. In America, we aim to give the guilty more justice than they deserve. We do so because of how that reflects upon us, not upon how it reflects upon the guilty. And when we fail to do so it says more about us than it does about the condemned.
I think the death penalty more than any other confounds the line between justice and revenge. Victims of crimes deserve and demand redress. However, people accused of notorious crimes have the right to contest the accusations, and to have a fair review of the evidence and testimony brought against them. An impartial magistrate or jury decides if the case has been made, and if so, what sort of punishment shall be meted out.
And what is the alternative to law and due process? Vendetta. The whole point of a criminal justice system is to spare people the risks and burdens of vendetta. It's to preserve communities from coming undone from the conflicts inevitably generated by revenge. Where would you rather live? In a civil society that functions despite all of its faults and corruptions, or in the State of Nature described by Hobbes, the "war of all against all?"
All religions (yes even Islam) condemn revenge because its fire is unquenchable and destroys everything around it. Revenge distorts justice by turning victims to crime and turning deserving criminals into undeserving victims.
Cohen uses the example of Timothy McVeigh as someone whose crime truly merited the death penalty. On the contrary, I think his death is a great example of vindictive passions distorting the course of justice, and not the passions of his victims, but McVeigh's. McVeigh expressed relief upon his sentencing. He said that the one thing he dreaded was a life sentence without parole. I think it is telling that he eventually stopped all of his appeals. McVeigh wanted to go out in a blaze of glory as a martyr for white supremacy, and he got what he wanted complete with a broadcast recitation of his favorite poem, "Invictus" by William Ernest Henley. If it was up to me, he would have spent a long life in short cell, pondering upon what he did.
There are people who do evil things that should not only be punished, but should remove them permanently from society. I'm all for meting out punishment to the guilty. Lawrence Russell Brewer committed about as horrific and evil an act as anyone could imagine, chaining a man to the back of his truck and dragging him to his death for no reason except that he felt that his victim was the wrong color. The passions of revenge would demand that Russell at least suffer the same fate. Vengeance was only partially satisfied by his execution. Was justice satisfied? Brewer is now as dead as his victim James Byrd, and neither is coming back.
And what will happen if it comes out that Brewer's execution was driven by political expediency as much as by justice? The taint of racism hangs heavily over the whole Texas judiciary system. Could it be that the state decided that one homicidal racist was a small price to pay to dispel at least some of that cloud? And would justice really be served then? It's doubts like these that caused even conservative justices like Stevens to turn against the death penalty.
In 1936, Fritz Lang made a very striking movie about the shifting line between justice and revenge called Fury.
And finally, there is this from Albert Camus:
But what then is capital punishment but the most premeditated of murders, to which no criminal's deed, however calculated it may be, can be compared? For there to be equivalence, the death penalty would have to punish a criminal who had warned his victim of the date at which he would inflict a horrible death on him and who, from that moment onward, had confined him at his mercy for months. Such a monster is not encountered in private life.